Towne v. Fire Ass'n

Garnett, P. J. The contention of appellant is, that the temporary removal of wearing apparel from its ordinary place of deposit, designated in a policy of insurance, for purposes reasonably incident to its use, does not suspend the risk assumed by the insurer. There are respectable authorities which sustain this proposition, as in Longueville v. The Western Assurance Company, 51 Iowa, 553, where the action was to recover the value of wearing apparel which was described in the policy as contained in a certain building in Dubuque, Iowa. At the time of the loss the insured was wearing the garments in the streets of Dubuque. The court held that it must be inferred that the parties to the contract intended the apparel to be used, and hence intended it to be used sometimes away from the dwelling. The same principle was applied in Noyes v. N. W. National Ins. Co., 64 Wis. 415, where the policy described the wearing apparel insured as contained in a certain house. One of the articles of the insured apparel was taken to a shop for repairs, and was there destroyed by fire on the same day it was received, before it could be repaired in the usual course of business. The court held such repairing was one of the necessary incidents to the us.e and enjoyment of the property, and must be presumed to have been in contemplation of the contracting parties. See also Hawes v. Fire Association of Philadelphia, 7 Atlantic Rep. 159; May on Insurance, 219. The decision in Annapolis & Elkridge R. R. Co. v. Balto. Fire Insurance Co., 32 Md. 37, is, perhaps, in conflict with the authorities above cited, but, if we adopt the rule of the cases relied on by appellant, it fails to reach her case. The removal of her wearing apparel was not such a temporary removal as the parties may be reasonably said to have had in view, nor was the place of ordinary deposit, described in the policy, continued after she commenced her visit in Ottawa. The ordinary use of the clothing in such cases does not include the using involved in long journeys, or protracted visits, during which the goods may be exposed to risks that the insurer would not have been disposed to incur. It would be unreasonable to infer any intention of that kind. That the locality and the surroundings of insured property are always considered material by insurers, in accepting and rejecting applications for insurance, is a matter of common information, to which courts can not be indifferent in the decision of questions of this character. Bisks on wearing apparel commonly kept in a building of safe construction might be taken at a low premium; in another less safe, the premium would be higher, and in still another, the risk declined. Certainly, it can not be supposed that a risk on such property, taken on ordinary terms, the place of deposit being described, attended by no circumstances raising an inference that unusual hazards were to be encountered, gives the insurer a discretion in the use of the property, which is not limited, either as to time or distance of removal from the place of deposit so designated. The treatment of the case by the Superior Court was correct, and the judgment is affirmed. Judgment affirmed. Gaby, J., took no part in the decision of this case.